FACULTY OF LAW

UNIVERSITI TEKNOLOGI MARA (UiTM)

FAMILY LAW II (LAW 583)

CASES COMMENTARY

Prepared by:

MOHD ZAMRE BIN MOHD ZAHIR 2007266984

(GROUP: 6C)

Prepared for:
P.M NURAISYAH CHUA ABDULLAH

Date of Submission: 12TH OF APRIL 2010

CASES COMMENTARY
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First and foremost, in the case of Subashini a/p Rajasingam v Saravanan a/l
Thangathoray and other appeals [2008] 2 MLJ 147, by referring to Nik Hashim FCJ
and Azmel FCJ in the court's view, the wife was entitled to proceed with the rest of the
application but it would be most appropriate if she filed her petition for divorce afresh
under s51,LRA coupled with an application for ancillary reliefs as the court would grant
the reliefs under s 51(2) upon dissolution of the marriage.

The court was of the view that s 51(1) did not violate art 8 of the Federal Constitution
and therefore was not void as complained. The classification created by s51(1) was a
reasonable classification as the persons in the non-converting category were treated
equally as are persons in the converting category based on Danaharta Urus Sdn Bhd v
Kekatong Sdn Bhd [2004] 2 MLJ 57.

The Federal Court ruled that the dispute between secretary R. Subashini, 29, and her
Muslim-convert husband T. Saravanan alias Muhammad Shafi Abdullah, 32, over the
dissolution of their marriage and child custody will continue to be under the jurisdiction
of the civil court. The Federal Court judge Justice Nik Hashim Nik Ab Rahman said a
non-Muslim marriage does not automatically dissolve when one of the parties converts
to Islam.

In my opinion, by contracting the civil marriage, the husband and wife were bound by
the 1976 Act (Law Reform (Marriage and Divorce) in respect to divorce and custody of
the children of the marriage, and thus, the civil court continues to have jurisdiction over
him, notwithstanding his conversion to Islam.

In a 2-1 majority judgment, Justice Nik Hashim said by embracing Islam, Saravanan
and his eldest son (who also converted) became subject to Muslim personal and
religious laws.

In my opinion, it is not an abuse of process, if he, being a Muslim, seeks remedies in the
Syariah High Court as it is his right to do so.

Justice Nik Hashim, who sat together with Federal Court judges Justices Abdul Aziz
Mohamad and Azmel Maamor mentioned that the dissolution order of the civil marriage
by the Syariah High Court by virtue of conversion would have no legal effect in the High
Court other than as evidence of the fact of the dissolution of the marriage under the
Islamic law in accordance with Hukum Syarak.

Therefore in my opinion, the non-Muslim marriage between the husband and wife
remains intact and continues to subsist until the High Court dissolves it pursuant to a
petition for divorce by the unconverted spouse under Section 51(1) of the 1976 Act.

So, there is no impediment for the converted husband to appear in the divorce
proceeding in the High Court.

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Court judges Justices Abdul Aziz Mohamad and Azmel said the contention that the wife
could submit to the jurisdiction of the Syariah Court and have recourse to Section 53 of
the 1993 Act are not quite correct as the Act limits its jurisdiction to Muslims only.

So, the wife, being a non-Muslim, has no locus in the Syariah court. Both judges also
agreed that although the Syariah courts are state courts, they are not lower in status
than the civil courts.

Justices Nik Hashim and Azmel threw out Subashini's appeal by a majority saying that
the divorce petition filed at High Court by Subashini was premature and invalid as it was
filed two months and 18 days short of three months after the husband's conversion to
Islam.

In conclusion, I believe that Justice Nik Hashim’s statement on his view that Subashini
was entitled to proceed with her application on custody but it would be most appropriate
if she filed her petition for divorce afresh. On conversion, both judges said either
husband or wife has the right to convert a child of the marriage to Islam.

However in the case of Pembangunan Cahaya Tulin Sdn Bhd & Ors v Citibank
BhdYong Fuat Meng v Chin Yoon Kew [2008] 5 MLJ 226, Hamid Sultan JC referring
to that is a judgment in respect of the issue of jurisdiction to hear the petition filed by the
petitioner who has embraced Islam nearly 20 years after the solemnization of his
marriage under the civil law. The respondent (wife) is still a non-Muslim.

The real issue before deciding the petition and granting the relief is to decide whether
the civil court has jurisdiction in light of s 51 of the Law Reform (Marriage and Divorce)
Act 1976 ('LRA 1976'), which says that when one party to a marriage has converted to
Islam, the other party who has not so converted may petition for divorce. One party to a
marriage has converted to Islam, the other party who has not so converted may petition
for divorce and provided that no petition under this section shall be presented before the
expiration of the period of three months from the date of the conversion.

In this case, the problem is that the petitioner who had converted has filed the petition,
which will appear to be non permissible under the above section and/or s 3 of the said
LRA 1976.

The second issue is whether the civil court has jurisdiction to entertain the petition when
s 44 of the Islamic Family Law Ordinance 2001 (Sarawak) ('IFLO 2001') states that the
renunciation of Islam by either party to a marriage or his or her conversion to a faith
other than Islam shall not by itself operate to dissolve the marriage unless and until so
confirmed by the court. The conversion to Islam by either party to a non-Muslim
marriage shall not by itself operate to dissolve the marriage unless and until so
confirmed by the court.

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In my opinion, as the petitioner is not a born Muslim, under the Islamic personal law,
there is no prohibition for the petitioner to appear before the civil court to settle his
obligations and/or liabilities as required by the law which he himself has previously
subscribed to by contracting a civil marriage under LRA 1976. Islamic Jurisprudence
has never been an obstacle for Muslims to fulfill legal requirement and/or equitable or
ethical requirement of the law of the country or for that matter, for the purpose of civil
law of marriage the contractual commitment of the convert.

For reasons stated above, I agreed that the court has jurisdiction to hear this matter
provided the petitioner amends the petition to include a prayer seeking a declaration
that the marriage has been dissolved as a result of conversion, as a procedural device
to invoke the court's jurisdiction. And this is necessary despite the fact that it is not
necessary under his personal law, and such a procedural step would be seen to be
independent of LRA 1976 and will not be seen as an infringement of any of the
provisions of the said Act. The display by way of affidavit, by at least obtaining a letter
from the relevant authorities or religious department, proof of conversion, to confirm
conversion on the facts of this case.

In the case of Chan Kam Tai (F) v Kong Pen Keong, the court held that the custody
goes to mother and the father must pay the maintenance RM1500 per month. In my
opinion, the decision of the court is acceptable. This is because the husband fails to
rebut the presumption in section 88(3). As stated above the presumption must be
rebutted in order not to give the custody to the mother of the child.

On the topic of the issue of undesirability of disturbing exist when change of custody
occur I did not agree when the judge cited the case of Eve J said in Re Thain. In my
opinion, for seven years old they would be affected psychologically when change of
custody occurs as they are not mature and it will be quite hard for them to adapt into the
new environment. However, I took into consideration the interview made by the judge
with the children. I am shock when the older child stated that she did not love her
mother for the reason that her grandmother told her that her mother was a compulsive
shopper. This incident should be taken into consideration as if she continues to stay
with her grandmother; she will not only did not love her mother but also may hate her.
As a result, this environment is not healthy for her and the custody should be given to
the mother. In short, the decision by the court is correct and acceptable even I did not
agree the case cited by the judge for the element of undesirability of troubling.

In conclusion, in my opinion I automatically agreed in the case of Subashini a/p

Rajasingam, the divorce petition filed at High Court by Subashini was premature and
invalid as it was filed two months and 18 days short of three months after the husband's
conversion to Islam. In Pembangunan Cahaya Tulin Sdn Bhd & Ors v Citibank
BhdYong Fuat Meng v Chin Yoon Kew I agreed that the court has jurisdiction to hear
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this matter provided the petitioner amends the petition to include a prayer seeking a
declaration that the marriage has been dissolved as a result of conversion, as a
procedural device to invoke the court's jurisdiction. And this is necessary despite the
fact that it is not necessary under his personal law, and such a procedural step would
be seen to be independent of LRA 1976 and will not be seen as an infringement of any
of the provisions of the said Act. In other aspect in Chan Kam Tai (F) v Kong Pen
Keong, the decision by the court is correct and acceptable in aspect of custody of a
child even I did not agree the case cited by the judge for the element of undesirability of
upsetting.

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